Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 829 OF 2009
(Arising out of S.L.P. (Crl.) No.9410 of 2008)
Ram Babu Tiwari ..Appellant
Versus
State of M.P. & Anr. ..Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Madhya Pradesh High Court, Jabalpur Bench, directing
cancellation of bail granted to the appellant.
3. Background facts are as follows:
The present appellant along with two others was arrested in
connection with Crime no.149/2008 registered at Kotwali Sehore, for
alleged commission of offence punishable under Sections 307 read with
Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’).
Appellant prayed for bail in terms of Section 439 of the Code of
Criminal Procedure, 1973 (in short ‘the Code’), which was allowed by order
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dated 27.5.2008 passed by learned 1 Additional Sessions Judge, Sihore.
An application for cancellation for bail was filed by the present respondent
no.2.
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Prosecution version is that in the wake of a property dispute present
appellant had hired with the assistance of one Deepak Harnath Singh,
respondent nos. 2 and 3 for killing Shyam Tiwari who is his real brother.
The shot fired by the present appellant hit one Ravi @ Rinku in his neck.
The cancellation was prayed on the following grounds:
(a) There is specific allegation against appellant that it was he who
had fired the shot.
(b) The respondent nos. 2 and 3 have consistent criminal
antecedent.
(c) After being released on bail, appellant by making a telephonic
call to Nikhlesh Tiwari, nephew of Shyam Tiwari, had
threatened to kill him in case he does not resile from his case
diary statement.
(d) Co-accused Deepak Harnath Singh is still absconding.
Accordingly, the High Court cancelled the bail granted. It was noted
that since the other co-accused have not opposed the prayer for cancellation
of bail that was also a factor so far as the appellant is concerned.
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4. Learned counsel for the appellant submitted that no reason has been
indicated to cancel the bail. The parameters for grant of bail and for
cancellation of bail operate in different fields. Therefore, the High Court on
the irrelevant reason that co-accused did not oppose the prayer should not
have cancelled the bail granted to the appellant.
5. Learned counsel for the respondent no.2, on the other hand, supported
the order.
6. The parameters for grant of bail and cancellation of bail are different.
There is no dispute to this position. But the question is if the trial Court
while granting bail acts on irrelevant materials or takes into account
irrelevant materials whether bail can be cancelled. Under the scheme of the
Code the application for cancellation of bail can be filed before the Court
granting the bail if it is a Court of Sessions, or the High Court.
7. This Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav and Anr. (2004 (7) SCC 528), in para 11 noted as follows:
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“11. The law in regard to grant or refusal of bail is very
well settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter or
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of
the merit of the case need not be undertaken, there is a
need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly
where the accused is charged of having committed a
serious offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also necessary
for the court granting bail to consider among other
circumstances, the following factors also before granting
bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(a) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
(a) Prima facie satisfaction of the court in support
of the charge. (See Ram Govind Upadhyay v. Sudarshan
Singh (2002 (3) SC 598) and Puran v. Rambilas (2001
(6) SCC 338).
8. It was also noted in the said case that the conditions laid down under
Section 437 (1)(i) are sine qua non for granting bail even under Section 439
of the Code.
9. In para 14 it was noted as follows:
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“14. We have already noticed from the arguments of
learned counsel for the appellant that the present accused
had earlier made seven applications for grant of bail
which were rejected by the High Court and some such
rejections have been affirmed by this Court also. It is
seen from the records that when the fifth application for
grant of bail was allowed by the High Court, the same
was challenged before this Court and this Court accepted
the said challenge by allowing the appeal filed by the
Union of India and another and cancelled the bail
granted by the High Court as per the order of this Court
made in Criminal Appeal No. 745 of 2001 dated 25-7-
2001. While cancelling the said bail this Court
specifically held that the fact that the present accused
was in custody for more than one year (at that time) and
the further fact that while rejecting an earlier application,
the High Court had given liberty to renew the bail
application in future, were not grounds envisaged under
Section 437(1)(i) of the Code. This Court also in specific
terms held that the condition laid down under Section
437(1)(i) is sine qua non for granting bail even under
Section 439 of the Code. In the impugned order it is
noticed that the High Court has given the period of
incarceration already undergone by the accused and the
unlikelihood of trial concluding in the near future as
grounds sufficient to enlarge the accused on bail, in spite
of the fact that the accused stands charged of offences
punishable with life imprisonment or even death penalty.
In such cases, in our opinion, the mere fact that the
accused has undergone certain period of incarceration
(three years in this case) by itself would not entitle the
accused to being enlarged on bail, nor the fact that the
trial is not likely to be concluded in the near future either
by itself or coupled with the period of incarceration
would be sufficient for enlarging the appellant on bail
when the gravity of the offence alleged is severe and
there are allegations of tampering with the witnesses by
the accused during the period he was on bail.”
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10. Even though the re-appreciation of the evidence as done by the Court
granting bail is to be avoided, the Court dealing with an application for
cancellation of bail under Section 439(2) can consider whether irrelevant
materials were taken into consideration. That is so because it is not known
as to what extent the irrelevant materials weighed with the Court for
accepting the prayer for bail.
11. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as
follows:
“11 . Further, it is to be kept in mind that the concept of
setting aside the unjustified illegal or perverse order is
totally different from the concept of cancelling the bail
on the ground that the accused has misconducted himself
or because of some new facts requiring such
cancellation. This position is made clear by this Court in
Gurcharan Singh v. State (Delhi Admn.) . In that case the
Court observed as under: (SCC p. 124, para 16)
“If, however, a Court of Session had admitted an
accused person to bail, the State has two options.
It may move the Sessions Judge if certain new
circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to
that court. The State may as well approach the
High Court being the superior court under Section
439(2) to commit the accused to custody. When,
however, the State is aggrieved by the order of the
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Sessions Judge granting bail and there are no new
circumstances that have cropped up except those
already existing, it is futile for the State to move
the Sessions Judge again and it is competent in
law to move the High Court for cancellation of the
bail. This position follows from the subordinate
position of the Court of Session vis-à-vis the High
Court.”
12. The perversity as highlighted in Puran’s case (supra) can also flow
from the fact that as noted above, irrelevant materials have been taken into
consideration adding vulnerability to the order granting bail. The irrelevant
materials should be of a substantial nature and not of a trivial nature. It is
nature of the acts which are to be considered. By way of illustration, it can
be said that the accused cannot take a plea while applying for bail that the
person whom he killed was a hardened criminal. That certainly is not a
factor which can be taken into account.
13. The order of the High Court is very sketchy. The High Court has not
considered the relevant aspect in detail. Only because the co-accused did
not actually oppose the prayer for cancellation of bail, that could not have
been a ground to cancel bail granted to the appellant.
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14. In the circumstances we set aside the impugned judgment and remit
the matter to the High Court for fresh consideration. We make it clear that
we have not expressed any opinion on the merits of the case. The High
Court shall examine the matter afresh keeping in view the parameters
indicated above. The appeal is accordingly disposed of.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
(ASOK KUMAR GANGULY)
New Delhi,
April 24, 2009
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